Political Watch - Opinion

Time to revisit the SA constitution?

There is a cancerous tumour present in the South African body-politics and, if not treated properly and expeditiously, it could cause multi- state organ failure, with vital ones like parliament, security structures, and state enterprises already desperately under-performing.

The name of that tumour is “state capture,” of which the relationship between the Gupta family and key figures in, and around, state structures is but a symptom or a secondary malignant growth.

The primary tumour is party-political state capture, at this stage, in the hands of a faction of the ruling African National Congress (ANC).

This tumour developed on a fault line in the country’s constitution at its birth in 1996, when at least one of its founding parents naively believed that an unqualified proportional elective system, based on party lists, would prevent the total domination by a single party in government.

On the back of the victory-spirit of the liberation struggle at the time, it was a given that the ANC, as the dominant symbol of that struggle, would win by a large margin with no pressing need for coalition partners. Even their so-called alliance – a coalition by another name – proved in practice to only exist in name.

Fundamental problem

Constitutional expert Pierre de Vos, in a recent article in the Daily Maverick, put his finger right on it when he wrote: “There are many reasons why real political power in South Africa largely lies with political parties and not with the democratically elected members of the legislature.

“The electoral system (which strengthens parties vis-à-vis democratic constitutional institutions like Parliament) and, the strict party discipline imposed by political parties on their elected MPs, are partly to blame for the fact that most politically important decisions are not taken by Parliament (except in a formal sense), but are rather taken by party leaders who were never elected into their political party positions by South Africa’s 20 million voters.”

The net result of this is, that the clear majority of voters are at least one removed – and if not a member of a political party that makes it into parliament, twice – from those who purport to represent them in parliament as MPs.

Opposition Democratic Alliance (DA) leader, Mmusi Maimane, was correct in his assessment this week that we “have one of the most progressive constitutions in the world. On paper, at least, it protects people's freedom and advances it." (Our emphasis.)

Fact is, evidence is piling-up by the day that in practice the over-reach of power by the executive, and their ANC “cadre-deployed” lackeys, has become the order of the day.

No constitution is perfect from the word go. The first amendment to the American constitution was proposed only six months after it was adopted in March 1789. An amendment ratified just more than two years later.

Nine more amendments were ratified during the first ten years after the US constitution came into force. No less 23 more amendments would follow over the years.

Interestingly, the one waiting the longest for ratification after proposal – a whopping 202 years, 7 months and 10 days, from 1789 until 1992 – delayed laws affecting Congressional salaries from taking effect until after the next election of representatives.

Going about it the right way

Maimane’s reference to the constitution came in a speech about plans, and actions already in progress, to establish a DA-led coalition for the upcoming elections of 2019.

On the one hand he said about the coalition talks, that “nothing is off the table, we are in the 2019 election to win it.” (Our emphasis.) However, in almost the same breath he said calls from some quarters for a new Convention of a Democratic SA (Codesa) as well as a claim that the root of the problem was the country's Constitution, was “not an option for the DA.”

Mr Maimane seems to be stepping into the same trap his party got caught up in during its messy coalition talks with AgangSA in the runup to the 2014 elections. Nowhere in the world does one get “election coalitions.” Coalitions happen after elections to form governments.

And, while there could be problems with an attempt to stage a Codesa-rerun – for one the question of the validity of the mandate of those taking part in – that is not the only option.

A second option might be to use the one arm of state that has thus far escaped the curse of cadre deployment, the judiciary. Maybe there can be an agreement between prospective coalition parties to, after the election, appoint a judicial commission of enquiry into possible constitutional amendments – soliciting inputs from across the full spectrum of South African society.

A proposed amended constitution, based on the commission’s report, can then be subjected to a national referendum – that would be the truly democratic way to go about it.